FORM OF UNDERWRITING AGREEMENT MORGAN STANLEY CAPITAL TRUST [ ] CAPITAL SECURITIES (Fully and unconditionally guaranteed, to the extent described herein, by Morgan Stanley)
EXHIBIT
1-c
FORM
OF
XXXXXX
XXXXXXX CAPITAL TRUST [ ]
CAPITAL
SECURITIES
(Fully and
unconditionally guaranteed, to the extent described herein,
by Xxxxxx
Xxxxxxx)
_____________,
20__
To the
Managers named in Schedule I hereto
for the
Underwriters named in Schedule II hereto
Ladies and
Gentlemen:
Xxxxxx Xxxxxxx Capital Trust
[ ], a statutory trust created under the Delaware Statutory Trust Act
(the “Issuer Trust”),
proposes to issue and sell to the underwriters named in Schedule II hereto
(the “Underwriters”),
for whom you are acting as managers (the “Managers”), the number of its
capital securities identified in Schedule I hereto (the “Firm Capital Securities”). The
Issuer Trust also proposes to issue and sell to the Underwriters not more than
any additional number of Capital Securities identified in Schedule I hereto (the
“Additional Capital
Securities”) if and to the extent that you shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Capital Securities granted to the Underwriters herein. The Firm
Capital Securities and the Additional Capital Securities are hereinafter
collectively referred to as the “Capital
Securities.” If the firm or firms listed in Schedule II
hereto include only the Managers listed in Schedule I hereto, then the
terms “Underwriters” and “Managers” as used herein shall each be deemed to refer
to such firm or firms.
The
Capital Securities will be guaranteed by Xxxxxx Xxxxxxx, a Delaware corporation
(the “Company”), to the
extent described in the Time of Sale Prospectus (as defined below) with respect
to distributions and amounts payable upon liquidation or redemption pursuant to
a Capital Securities Guarantee Agreement, to be dated as of ____,
20__, and executed and delivered by the Company and The Bank of New York Mellon,
as trustee (the “Guarantee
Trustee”), for the benefit of the holders from time to time of the
Capital Securities (the “Guarantee”).
The Issuer
Trust will use the proceeds from the sale of the Capital Securities and the sale
of Common Securities (as defined below) to purchase from the Company an
aggregate principal amount of its Junior Subordinated Deferrable Interest
Debentures (the “Junior
Subordinated Debentures”) equal to the aggregate liquidation amount of
the Capital Securities and Common Securities. The Junior Subordinated
Debentures will be issued under a Junior Subordinated Indenture dated as of
___________, 20__ between the Company and The Bank of New York
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Mellon, as
trustee (the “Debt Securities
Trustee”) (as amended and supplemented to the date hereof, the “Junior Subordinated Debt
Indenture”). The Company will be the holder of one hundred
percent of the common securities representing undivided beneficial interests in
the assets of the Issuer Trust (the “Common Securities” and,
together with the Capital Securities, the “Trust
Securities”). The Issuer Trust has been created under Delaware
law pursuant to the filing of a Certificate of Trust (the “Certificate of Trust”) with
the Secretary of State of the State of Delaware and, at the time of issuance of
Trust Securities, will be governed by an Amended and Restated Trust Agreement
(the “Trust Agreement”)
among the Company, as depositor, The Bank of New York Mellon, as Property
Trustee (the “Property
Trustee”), BNY Mellon Trust of Delaware, as Delaware Trustee (the “Delaware Trustee”)
(collectively, the “Issuer
Trustees”), and the Administrators (as defined below) and the holders
from time to time of the Trust Securities. The Company, as holder of
the Common Securities of the Issuer Trust, has appointed the Issuer Trustees and
two individuals who are employees or officers of or affiliated with the Company
to act as administrators with respect to the Issuer Trust (the “Administrators”). The
Bank of New York Mellon, as Property Trustee, will act as Indenture Trustee for
the purposes of the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
The
Company and the Issuer Trust have filed with the Securities and Exchange
Commission (the “Commission”) a registration
statement including a prospectus (the file number of which is set forth in
Schedule I hereto) on Form S-3, relating to, among other securities, the Capital
Securities, the Junior Subordinated Debentures and the Guarantee (collectively,
the “Securities”) and
have filed with, or transmitted for filing to, or shall promptly after the date
of this Agreement file with or transmit for filing to, the Commission a
prospectus supplement (in the form first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company and the
Issuer Trust to meet requests of purchasers pursuant to Rule 173 under the
Securities Act), the “Prospectus Supplement”)
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
“Securities Act”),
specifically relating to the Securities offered pursuant to this
Agreement. The term “Registration Statement” means
the registration statement as amended to the date of this Agreement, including
the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities
Act. The term “Basic
Prospectus” means the prospectus, dated ____, 200_, relating to the
Securities included in the Registration Statement, in the form first used to
confirm sales of the Securities (or in the form first made available to the
Underwriters by the Company and the Issuer Trust to meet requests of purchasers
pursuant to Rule 173 under the Securities Act). The term “Prospectus” means the Basic
Prospectus as supplemented by the Prospectus Supplement. The term
“preliminary prospectus”
means any preliminary form of the Prospectus. For purposes of this
Agreement, the term “free
writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act. The term “Time of Sale Prospectus” means
the Basic Prospectus and the preliminary prospectus together with the free
writing prospectuses, if any, and the other documents or information identified
in Schedule I hereto. The term “broadly available road show”
means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used
herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment” and “amend” as used herein with
respect to
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the
Registration Statement, the Basic Prospectus, the Time of Sale Prospectus or any
preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), that are
deemed to be incorporated by reference therein.
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect; and no proceedings for
such purpose are pending before or threatened by the Commission. The
Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) and the Company and the Issuer Trust are eligible to use the
Registration Statement as an automatic shelf registration statement, and neither
the Company nor the Issuer Trust has received notice that the Commission objects
to the use of the Registration Statement as an automatic shelf registration
statement.
(b) Any
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects with
the Securities Act and the rules and regulations of the Commission
thereunder.
(c) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement as of
the date hereof does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iv) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply,
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (v) the Time of Sale Prospectus does
not, and at the time of each sale of the Securities in connection with the
offering when the Prospectus is not yet available to prospective purchasers and
at the Closing Date or the Option Closing Date (each as defined in Section 4),
as the case may be, the Time of Sale Prospectus, as then amended or supplemented
by the Company and the Issuer Trust, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a
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material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to (A) statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein or (B) those parts of the Registration
Statement that constitute the Statements of Eligibility (Forms T-1) under
the Trust Indenture Act of the trustees referred to in the Registration
Statement.
(d) Neither
the Company nor the Issuer Trust is an “ineligible issuer” in connection with
the offering of the Securities pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company or the
Issuer Trust is required to file pursuant to Rule 433(d) under the Securities
Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Company or the Issuer Trust has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used
or referred to by the Company or the Issuer Trust complies or will comply in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Schedule I hereto, and
electronic road shows, if any, each furnished to you before first use, each of
the Company and the Issuer Trust has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(e) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(f) Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
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(g) The
Issuer Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act, is a “grantor trust” for
Federal income tax purposes, has the power and authority to conduct its business
as presently conducted and as described in the Time of Sale Prospectus and is
not required to be authorized to do business in any other
jurisdiction.
(h) This
Agreement has been duly authorized, executed and delivered by each of the Issuer
Trust and the Company.
(i) The
Junior Subordinated Debt Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and equitable principles of general
applicability.
(j) The
Junior Subordinated Debentures have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the Junior
Subordinated Debt Indenture and delivered and paid for as described in the Time
of Sale Prospectus, will be entitled to the benefits of the Junior Subordinated
Debt Indenture, and will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(k) The
Guarantee has been qualified under the Trust Indenture Act and has been duly
authorized by the Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and delivery by the Guarantee
Trustee), will, as of the Closing Date or the Option Closing Date (each as
defined in Section 4), as the case may be, be a valid and binding agreement of
the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(l) The
Trust Agreement has been qualified under the Trust Indenture Act and has been
duly authorized by the Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and delivery thereof by each
party thereto other than the Company), will, as of the Closing Date or the
Option Closing Date (each as defined in Section 4), as the case may be, be a
valid and binding agreement of the Company, the Issuer Trustees and the
Administrators, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability and except as rights to
indemnification may be limited under applicable law.
(m) The
Capital Securities have been duly authorized by the Trust Agreement and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be validly issued and (subject to the terms of
the Trust Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of
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the Issuer
Trust, and the issuance of such Capital Securities will not be subject to any
preemptive or similar rights. Holders of the Capital Securities will
be entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Common Securities of
the Issuer Trust have been duly authorized by the Trust Agreement and, when
issued and delivered to the Company against payment therefor as described in the
Time of Sale Prospectus, will be validly issued undivided beneficial interests
in the assets of the Issuer Trust, and the issuance of such Common Securities
will not be subject to any preemptive rights.
(n) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Junior Subordinated Debt Indenture,
the Trust Agreement, the Guarantee and the Junior Subordinated Debentures will
not contravene any provision of applicable law, the Trust Agreement or the
certificate of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its consolidated subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Junior Subordinated Debt Indenture,
the Trust Agreement, the Guarantee and the Junior Subordinated Debentures,
except such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities; provided, however, that no
representation is made as to whether the purchase of the Securities constitutes
a “prohibited transaction” under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended.
(o) The
execution and delivery by the Issuer Trust of, and the performance by the Issuer
Trust of its obligations under, this Agreement will not contravene any provision
of applicable law or the Trust Agreement or any agreement or other instrument
binding upon the Issuer Trust, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer Trust,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Issuer Trust
of its obligations under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities; provided however, that no
representation is made as to whether the purchase of the Capital Securities
constitutes a “prohibited transaction” under 406 of the Employment Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended.
(p) There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Issuer Trust or the Company
and its subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus.
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(q) There
are no legal or governmental proceedings pending or threatened to which the
Issuer Trust or the Company or any of its consolidated subsidiaries is a party
or to which any of the properties of the Issuer Trust or the Company or any of
its consolidated subsidiaries is subject (i) other than proceedings accurately
described in all material respects in the Time of Sale Prospectus and
proceedings that would not have a material adverse effect on the Issuer Trust or
the Company and its consolidated subsidiaries, taken as a whole, or on the power
or ability of the Issuer Trust or the Company to perform its obligations under
this Agreement, the Indenture or the Securities or to consummate the
transactions contemplated by the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so
described; and there are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(r) Neither
the Issuer Trust nor the Company is, and after giving effect to the offering and
sale of the Capital Securities and the application of the proceeds thereof as
described in the Prospectus neither will be, required to register as an
“investment company” as such term is defined under the Investment Company Act of
1940, as amended.
(s) Each
of the Issuer Trust and the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the Time of
Sale Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(t) Xxxxxx
Xxxxxxx & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
(u) Each
of the Company and the Issuer Trust has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
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In
addition, upon the basis of the representations and warranties herein contained,
but subject to the terms and conditions set forth herein, the Issuer Trust
hereby agrees to sell to the Underwriters the Additional Capital Securities and
the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to the respective number of Additional Capital Securities identified
in Schedule I hereto at the purchase price set forth in Schedule I hereto;
provided, that the Company shall pay to the Underwriters compensation equal to
$_____ per Additional Capital Security. Additional Capital Securities
may be purchased as provided herein solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Capital
Securities. If any Additional Capital Securities are to be purchased,
each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase the number of Additional Capital Securities
(subject to such adjustments to eliminate fractional Additional Capital
Securities as you may determine) that bears the same proportion to the total
number of Additional Capital Securities to be purchased as the number of Firm
Capital Securities set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Capital Securities.
4. Purchase and
Delivery. Payment for the Firm Capital Securities shall be
made to the Issuer Trust in Federal or other funds immediately available in New
York City at the closing time and place set forth in Schedule I hereto, or at
such other time on the same or such other date, not later than the fifth
business day thereafter, as may be designated by you in writing. The
time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment
for any Additional Capital Securities shall be made to the Issuer Trust in
Federal or other funds immediately available in New York City at the closing
place referred to above on such date of your determination (which may be the
same as the Closing Date but shall in no event be earlier than the Closing Date
nor later than ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from you to the Company,
on behalf of the Underwriters, to purchase a number, specified in said notice,
of Additional Capital Securities, or on such other date as shall be designated
in writing by you. In any event, such payment date shall be not later
than __________, 2___. The time and date of such payment
are hereinafter referred to as the “Option Closing
Date.” The notice of the determination to exercise the option
to purchase Additional Capital Securities and of the Option Closing Date may be
given at any time within 30 days after the date of this Agreement.
Payment
for the Firm Capital Securities or any Additional Capital Securities shall be
made against delivery to you on the Closing Date or the Option Closing Date, as
the case may be, for the respective accounts of the several Underwriters, of the
Firm Capital Securities or any Additional Capital Securities, as the case may
be, registered in such names and in such denominations as you shall request in
writing not less than one full business day prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
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connection
with the transfer of the Firm Capital Securities or any Additional Capital
Securities, as the case may be, to the Underwriters duly paid.
It is understood that substantially
contemporaneously with the closing of the sale of any Additional Capital
Securities to the Underwriters, (i) [the Issuer Trust shall issue
additional Common Securities to the Company (the “Additional Common
Securities”)], (ii) the Company and The Bank of New York Mellon, as
Trustee, acting pursuant to the Junior Subordinated Debt Indenture, shall
provide for the issuance of Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation amount of such Additional Capital
Securities [and Additional Common Securities] and (iii) the Company shall
sell such Junior Subordinated Debentures to the Issuer Trust and the Issuer
Trust shall purchase such Junior Subordinated Debentures with proceeds of the
sale of such Additional Capital Securities to the Underwriters [and of such
Additional Common Securities to the Company].
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date,
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Issuer Trust or the Company and its consolidated
subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus as of the date of this Agreement that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, and a
certificate, dated the Closing Date and signed by an Administrator of the Issuer
Trust:
(i) to
the effect set forth in clause 5(a)(i) above (in the case of the
certificate signed by an executive officer of the Company); and
(ii) to
the effect that the representations and warranties of the Company (in the case
of the certificate signed by an executive officer of the Company) and the Issuer
Trust (in the case of the certificate signed by an Administrator of the Issuer
Trust) contained in this Agreement are true and correct as of the Closing Date
and that each of the Company and the Issuer Trust, as applicable, has complied
with all of the agreements
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and
satisfied all of the conditions on its part to be performed or satisfied on or
before the Closing Date.
The
executive officer or Administrator signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx
& Xxxxxxxx, outside counsel to the Company, or of other counsel satisfactory
to you and who may be an officer of the Company, dated the Closing Date, to the
effect that:
(i) the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(ii) each
of Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International
Holdings Inc. (the “Material
Subsidiaries”) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole;
(iii) each
of the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Time of Sale Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its consolidated subsidiaries, taken
as a whole;
(iv) the
Junior Subordinated Debt Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and equitable principles of general
applicability;
(v) the
Junior Subordinated Debentures have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
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Junior
Subordinated Debt Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the benefits of
the Junior Subordinated Debt Indenture and will be valid and binding obligations
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and equitable principles of general applicability;
(vi) this
Agreement has been duly authorized, executed and delivered by the
Company;
(vii) the
Guarantee has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability;
(viii) the
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Junior Subordinated Debt Indenture,
the Trust Agreement, the Guarantee and the Junior Subordinated Debentures will
not contravene any provisions of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such counsel’s
knowledge, any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization, or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Junior Subordinated Debt Indenture,
the Trust Agreement, the Guarantee and the Junior Subordinated Debentures,
except as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities; provided, however, that such counsel
need not express an opinion as to whether the purchase of the Securities
constitutes a “prohibited transaction” under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended;
(ix) the
statements relating to legal matters, documents or proceedings included in
(A) the Basic Prospectus under the captions “The Xxxxxx Xxxxxxx Capital
Trusts,” “Description of Capital Securities,” “Description of Junior
Subordinated Debentures,” “Description of Guarantees” and “Plan of
Distribution,” (B) the Time of Sale Prospectus, if applicable, and the
Prospectus Supplement under “Description of Capital Securities,” “Description of
Junior Subordinated Debentures,” “Description of Guarantee,” “Relationship Among
the Capital Securities, the Junior Subordinated Debentures and the Guarantee”
and “Underwriters,” (C) the Registration Statement under Item 15, (D)
“Item 3. Legal Proceedings” of the most recent annual report on
Form 10-K incorporated by reference in the Time of Sale Prospectus and the
Prospectus and (E) “Item 1. Legal Proceedings” of Part II of the
quarterly reports on Form 10-Q, if any, filed since such annual report and
incorporated by reference in the Time of Sale Prospectus
11
and the
Prospectus, in each case fairly summarize in all material respects such matters,
documents or proceedings;
(x) after
due inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries or the Issuer Trust is a party or to which any of the properties of
the Company or any of its consolidated subsidiaries or the Issuer Trust is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated by reference as required;
(xi) neither
the Company nor the Issuer Trust is, and after giving effect to the offering and
sale of the Capital Securities and the application of the proceeds thereof as
described in the Prospectus neither will be, required to register as an
“investment company” as such term is defined in the Investment Company Act of
1940, as amended;
(xii) the
statements in each of the Time of Sale Prospectus, if applicable, and the
Prospectus Supplement under the caption “United States Federal Taxation” to the
extent that they constitute summaries of matters of law or regulation or legal
conclusions, fairly summarize the matters set forth therein in all material
respects; and
(xiii) (A)
in the opinion of such counsel (1) each document filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need not express any opinion) appeared on its face to be appropriately
responsive as of its filing date in all material respects to the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder and (2) the Registration Statement and the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute the Forms T-1, as to which such counsel need not express any
opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, and (B) nothing has come to the
attention of such counsel that causes such counsel to believe that (1) any part
of the Registration Statement, when such part became effective (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute Forms T-1, as to which such counsel need not express any belief)
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (2) the Registration Statement or the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute Forms T-1, as to which such counsel need not express any belief)
on the date of this Agreement, contained any untrue statement of a material fact
or omitted to state a material fact required to be
12
stated
therein or necessary to make the statements therein not misleading, (3) the Time
of Sale Prospectus (except for the financial statements and financial schedules
and other financial and statistical data included therein, as to which such
counsel need not express any belief), as of the date of this Agreement or as
amended or supplemented, if applicable, as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made not misleading or (4) the
Prospectus (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need not express any belief), as amended or supplemented, if applicable, as of
the Closing Date contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The
Underwriters shall have received on the Closing Date an opinion of Sidley Austin
LLP, counsel for the Underwriters, dated the Closing Date, covering the matters
referred to in Sections 5(c)(iv), 5(c)(v), 5(c)(vi), 5(c)(vii) and 5(c)(ix) (but
only as to the statements in the Basic Prospectus under “Description of Capital
Securities,” “Description of Junior Subordinated Debentures,” “Description of
Guarantees” and “Plan of Distribution” and in the Time of Sale Prospectus (if
applicable) and the Prospectus Supplement under “Description of Capital
Securities,” “Description of Junior Subordinated Debentures,” “Description of
Guarantee,” “Relationship Among the Capital Securities, the Junior Subordinated
Debentures and the Guarantee” and “Underwriters”), and Sections
5(c)(xiii)(A)(2), 5(c)(xiii)(B)(2), 5(c)(xiii)(B)(3) and 5(c)(xiii)(B)(4)
above.
With
respect to Section 5(c)(xiii) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinion
and belief are based upon his or her participation, or the participation of
someone under his or her supervision, in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to Section 5(c)(xiii) above, Xxxxx Xxxx & Xxxxxxxx and, if Sidley
Austin LLP is giving such opinion, Sidley Austin LLP, may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, if any, any free writing prospectuses
identified as part of the Time of Sale Prospectus in Schedule I hereto, the
Prospectus Supplement and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and upon review and
discussion of the contents of the Registration Statement, the Time of Sale
Prospectus and the Prospectus (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(e) The
opinion of Xxxxx Xxxx & Xxxxxxxx, or any other outside counsel for the
Company, described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(f) The
Underwriters shall have received on the Closing Date an opinion dated the
Closing Date of Xxxxxxxx, Xxxxxx & Finger, PA, special Delaware counsel
for
13
the Issuer
Trust and the Company, or of other counsel satisfactory to the Manager, to the
effect that:
(i) the
Issuer Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act, and, under the Trust
Agreement and the Delaware Statutory Trust Act, has the trust power and
authority to conduct its business, all as described in the Registration
Statement and Time of Sale Prospectus;
(ii) assuming
due authorization, execution and delivery of the Trust Agreement by the Company,
the Administrators and the Issuer Trustee, the Trust Agreement is a legal, valid
and binding agreement of the Company, the Administrators and the Issuer Trustee
and is enforceable against the Company, the Administrators and the Issuer
Trustee, in accordance with its terms, subject, as to enforcement, to the effect
upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and transfer,
and other similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution;
(iii) under
the Trust Agreement and the Delaware Statutory Trust Act, the execution and
delivery of this Agreement by the Issuer Trust, and the performance by the
Issuer Trust of its obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Issuer Trust;
(iv) the
Capital Securities have been duly authorized by the Trust Agreement and are duly
and validly issued and, subject to the qualifications set forth in such opinion,
will be fully paid and nonassessable undivided beneficial interests in the
assets of the Issuer Trust; the holders of Capital Securities, as beneficial
owners of the Issuer Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
(v) the
Common Securities have been duly authorized by the Trust Agreement and are duly
and validly issued undivided beneficial interests in the assets of the Issuer
Trust;
(vi) under
the Trust Agreement and the Delaware Statutory Trust Act, the issuance of the
Trust Securities is not subject to preemptive rights;
(vii) the
statements in the Basic Prospectus under the caption “The Xxxxxx Xxxxxxx Capital
Trusts” and “Description of Capital Securities” and the statements in the
Prospectus Supplement and, if applicable, the Time of Sale Prospectus under the
captions “Xxxxxx Xxxxxxx Capital Trust [ ],” “Description of Capital
Securities” and “Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the
14
Guarantee,”
insofar as such statements constitute statements of Delaware law, are fairly
presented;
(viii) the
issuance and the sale of the Trust Securities by the Issuer Trust, the
execution, delivery and performance by the Issuer Trust of this Agreement, the
consummation by the Issuer Trust of the transactions contemplated by this
Agreement and compliance by the Issuer Trust with its obligations under this
Agreement do not violate (A) the Certificate of Trust of the Issuer Trust
or the Trust Agreement, or (B) any applicable Delaware law or Delaware
administrative regulation;
(ix) after
due inquiry, limited to, and solely to the extent reflected on the second
business day prior to the Closing Date, the results of computer searches of the
court dockets for active cases of the Court of Chancery of the State of Delaware
in and for New Castle County, Delaware, of the Superior Court of the State of
Delaware in and for New Castle County, Delaware, and of the United States
Federal District Court sitting in the State of Delaware, such counsel does not
know of any legal or governmental proceeding pending against the Issuer
Trust;
(x) no
authorization, approval, consent or order of any Delaware court or any Delaware
governmental authority or Delaware agency is required to be obtained by the
Issuer Trust solely in connection with the issuance and sale of the Trust
Securities; and
(xi) the
Capital Security holders (other than those Capital Security holders who reside
or are domiciled in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their participation
in the Issuer Trust, and the Issuer Trust will not be liable for any income tax
imposed by the State of Delaware.
In
rendering such opinion, such counsel may note that holders of Trust Securities
may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity
and security in connection with and pay taxes or other governmental charges
arising from transfers of certificates for Trust Securities and the issuance of
replacement certificates for Trust Securities, (ii) provide security and
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and remedies under the Trust Agreement and
(iii) undertake to pay costs as a party litigant in any suit for the
enforcement of any right or remedy under the Trust Agreement or against the
Property Trustee, to the extent provided in the Trust Agreement.
(g) The
Underwriters shall have received on the date hereof and on the Closing Date,
letters, dated the date hereof and the Closing Date, respectively, in form and
substance satisfactory to the Managers, from the Company’s independent public
accountants, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
15
The
several obligations of the Underwriters to purchase Additional Capital
Securities hereunder are subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Issuer Trust and the Company, the due authorization and issuance
of the Additional Capital Securities and other matters related to the issuance
of the Additional Capital Securities.
(a) To
furnish to you without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference) and to
deliver to each of the Underwriters during the period mentioned in Section 6(e)
or 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus,
any documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company or the Issuer Trust and
not to use or refer to any proposed free writing prospectus to which you
reasonably object.
(d) Not
to take any action that would result in an Underwriter or the Company or the
Issuer Trust being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or on behalf of
the Underwriter that the Underwriter otherwise would not have been required to
file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Capital
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition shall exist as a result of
which it is necessary to amend or supplement the Time of Sale Prospectus in
order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition shall exist as a result of
which the Time of Sale Prospectus conflicts with the information contained in
the Registration Statement then on file, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Time of Sale
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at the Company’s expense, to the Underwriters and to any
dealer upon request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so amended
or supplemented will not, in the light of the circumstances when the Time of
Sale Prospectus is delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended
16
or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If,
during such period after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition shall exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission, and furnish, at the Company’s own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) under the Securities Act)
is delivered to a purchaser, be misleading or so that the Prospectus, as amended
or supplemented, will comply with applicable law.
(g) To
endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To
make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of the Company’s and the Issuer Trust’s obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company’s and the Issuer Trust’s counsel and the Company’s and the Issuer
Trust’s accountants in connection with the registration and delivery of the
Securities under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
or the Issuer Trust and amendments and supplements to any of the foregoing,
including the filing fees payable to the Commission relating to the Securities
(within the time required by Rule 456 (b)(1), if applicable), all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal
17
investment
memorandum in connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification of the
Securities for offer and sale under state securities laws as provided in Section
6(g) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the
Securities by the Financial Industry Regulatory Authority, Inc., (v) any fees
charged by the rating agencies for the rating of the Securities, (vi) all fees
and expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Securities and all costs and expenses
incident to listing the Securities on [the New York Stock Exchange/The NASDAQ
Stock Market LLC or such other exchange as may be agreed between the Company and
the Managers] (vii) the cost of the preparation, issuance and delivery of the
Securities, (viii) the costs and charges of any trustee, transfer agent,
registrar or depositary, (ix) the costs and expenses of the Company or the
Issuer Trust relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the preparation or dissemination of
any electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company or the
Issuer Trust, travel and lodging expenses of the representatives and officers of
the Company and the Issuer Trust and any such consultants, and the cost of any
aircraft chartered in connection with the road show, (x) the document production
charges and expenses associated with printing this Agreement and (xi) all other
costs and expenses incident to the performance of the obligations of the Company
and the Issuer Trust hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution,” and the last paragraph
of Section 10 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable on
resale of any of the Securities by them and any advertising expenses connected
with any offers they may make.
(j) If
the third anniversary of the initial effective date of the Registration
Statement occurs before all the Capital Securities have been sold by the
Underwriters, prior to the third anniversary to file a new shelf registration
statement and to take any other action necessary to permit the public offering
of the Capital Securities to continue without interruption; references herein to
the Registration Statement shall include the new registration statement declared
effective by the Commission.
(k) During
the period beginning on the date hereof and continuing to and including the
Closing Date, and without the prior written consent of the Manager identified in
Schedule I with the authorization to release this lock-up on behalf of the
Underwriters, not to (i) offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any securities of the Company or the Issuer Trust that
are substantially similar to the Capital Securities
18
(other
than (x) the Securities, (y) commercial paper issued in the ordinary course of
business or (z) securities or warrants permitted with the prior written consent
of the Manager identified in Schedule I with the authorization to release this
lock-up on behalf of the Underwriters) or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any transactions described
above are to be settled by securities, in cash or otherwise, except in the
offering.
(l) To
prepare, if the Managers so request, a final term sheet relating to the offering
of the Securities, containing only information that describes the final terms of
the Securities or the offering in a form consented to by you, and to file such
final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the
offering of the Capital Securities.
(m) To
use it best efforts to accomplish the listing of the Capital Securities on the
[the New York Stock Exchange/ The NASDAQ Stock Market LLC or such other exchange
as may be agreed between the Company and the Managers].
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Issuer Trust, the Issuer Trustees, the Administrators, the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Issuer Trust or Company within the meaning of either
Section 15 of the Securities Act or Section 20 of
19
the
Exchange Act to the same extent as the foregoing indemnity from the Company and
the Issuer Trust to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company or the Issuer Trust in
writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendment or supplement
thereto.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager authorized to appoint counsel under this
Section 8 as set forth in Schedule I hereto, in the case of parties indemnified
pursuant to Section 8(a), and by the Company and the Issuer Trust, in the case
of parties indemnified pursuant to Section 8(b). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party; unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To
the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or
20
liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Issuer Trust on
the one hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause 8(d)(i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Issuer Trust on the one hand
and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits
received by the Company and the Issuer Trust on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Junior Subordinated Debentures (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters bear to the aggregate initial public
offering price of the Capital Securities as set forth in the
Prospectus. The relative fault of the Company and the Issuer Trust on
the one hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Issuer Trust or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters’ respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective principal amounts of Capital
Securities they have purchased hereunder, and not joint.
(e) The
Company, the Issuer Trust and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Capital Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company and the Issuer
Trust contained in this Agreement shall remain operative and in full force and
effect, regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter,
21
any person
controlling any Underwriter or any affiliate of any Underwriter or by or on
behalf of the Company or the Issuer Trust, the officers or directors of the
Company or the Issuer Trust or any person controlling the Company or the Issuer
Trust and (iii) acceptance of and payment for any of the Capital
Securities.
9. Termination. The
Underwriters may terminate this Agreement by notice given by you to the Company
if, after the execution and delivery of this Agreement and prior to the Closing
Date, (i) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, The Nasdaq
Stock Market LLC, the NYSE Alternext US LLC, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(ii) trading of any securities of the Company or any Issuer Trust shall
have been suspended on any exchange or in any over-the-counter market,
(iii) a material disruption in securities settlement, payment or clearance
services in the United States [or other relevant jurisdiction] shall have
occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State [or relevant foreign country1] authorities or (v) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets (or, if the Securities are denominated in a currency other than U.S.
dollars, any change in currency exchange rates or controls) or any calamity or
crisis that, in your judgment, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in
your judgment, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Capital Securities on the terms and in the manner contemplated
in the Time of Sale Prospectus or the Prospectus.
If, on the
Closing Date or the Option Closing Date, as the case may be, any one or more of
the Underwriters shall fail or refuse to purchase Capital Securities that it has
or they have agreed to purchase hereunder on such date, and the aggregate number
of Capital Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Capital Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Capital Securities set forth opposite their respective names in Schedule II
hereto bears to the aggregate number of Firm Capital Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Capital Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided
that in no event shall the number of Capital Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Capital
Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Capital Securities and the aggregate number of Firm Capital
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Firm Capital Securities to be purchased, and
arrangements satisfactory to you and the Company and the Issuer Trust for the
purchase of such Firm Capital Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
______________________
1 Include if
transaction involves offshore settlement.
22
any
non-defaulting Underwriter, the Company or the Issuer Trust. In any
such case either you or the Company or the Issuer Trust shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement, in the Time of
Sale Prospectus, in the Prospectus or in any other documents or arrangements may
be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Capital Securities and
the aggregate number of Additional Capital Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional
Capital Securities to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation to purchase Additional Capital
Securities or (ii) purchase not less than the number of Additional Capital
Securities that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the Company or the Issuer Trust to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company or the Issuer Trust shall be unable to perform its
obligations under this Agreement, the Company and the Issuer Trust jointly and
severally agree to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
(b) Each
of the Issuer Trust and the Company acknowledges that in connection with the
offering of the Securities: (i) the Underwriters have acted at arms length, are
not agents of, and owe no fiduciary duties to, the Company, the Issuer Trust or
any other person, (ii) the Underwriters owe the Company and the Issuer Trust
only those duties and obligations set forth in this Agreement and prior written
agreements (to the extent not superseded by this Agreement), if any, and (iii)
the Underwriters may have interests that differ from those of the Company and
the Issuer Trust. Each of the Company and the Issuer Trust waives to
the full extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities.
23
24
Very
truly yours,
XXXXXX
XXXXXXX CAPITAL TRUST [ ]
By:
Xxxxxx Xxxxxxx, as Depositor
|
|||
By:
|
|||
Name: | |||
Title: | |||
XXXXXX
XXXXXXX
|
|||
By:
|
|||
Name: | |||
Title: | |||
Accepted
as of the date hereof
[NAME[S]
OF [CO-]MANAGER[S]]
Acting
severally on behalf of [itself][themselves] and
the
several Underwriters named in Schedule II hereto
By: [Name[s]
of [Co-]Manager[s]]
By:
______________________________________________
|
Name:
|
|
Title:
|
25
SCHEDULE
I
Managers:
|
[Xxxxxx
Xxxxxxx & Co. Incorporated/
Xxxxxx
Xxxxxxx & Co. International plc]
[additional
Managers]
|
|
Manager
authorized to release lock-up under Section 6(k): [Xxxxxx Xxxxxxx &
Co. Incorporated/Xxxxxx Xxxxxxx & Co. International
plc]
|
||
Manager
authorized to appoint counsel under Section 8(c): [Xxxxxx Xxxxxxx &
Co. Incorporated/Xxxxxx Xxxxxxx & Co. International plc]
|
||
Registration
Statement File No.:
|
333-_______
|
|
Time
of Sale Prospectus:
|
A.
Basic Prospectus dated __________, 20__
B.
preliminary prospectus dated __________, 20__ relating to the
Securities
C.
[free writing prospectus containing a description of terms that does not
reflect final terms, if the Time of Sale Prospectus does not include a
final term sheet]
D.
[Identify all free writing prospectuses filed by the Company or the Issuer
Trust under Rule 433(d) of the Securities Act]
E.
[orally communicated pricing information to be included on Schedule I if a
final term sheet is not used]
|
|
Designation
of the Series of Capital Securities:
|
_____%
Capital Securities
|
|
CUSIP/ISIN/Common
Code:
|
||
Aggregate
Number of Firm Capital Securities:
|
I-1
Securities:
|
||
Aggregate
Number of Additional Capital Securities:
|
Up
to _____
|
|
Aggregate
Number of Capital Securities (if the Underwriters’ over-allotment option
is exercised in full):
|
||
Purchase
Price:
|
$_____
per Capital Security, plus accumulated distributions, if any,
from __________, 20__ to the date of payment and
delivery
|
|
Price
to Public:
|
$_____
|
|
Underwriters’
Compensation per Capital Security:
|
$_____
|
|
Selling
Concession per Capital Security:
|
$_____
|
|
Reallowance
per Capital Security:
|
$_____
|
|
Form:
|
Book-entry
|
|
Other
Terms:
|
||
Maturity
Date:
|
||
Original
Issue Date:
|
||
Distribution
Rate:
|
____%
per annum, accruing from ________, 20__
|
|
Distribution
Payment Dates:
|
||
Minimum
Denominations:
|
||
Redemption
Provisions:
|
||
Book-Entry
Form:
|
The
Capital Securities will be issued in the form of one or more fully
registered global securities certificates which will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York (the “Depositary”) and
registered in the name of Cede & Co., the Depositary’s
nominee. Beneficial interests in the capital securities will be
represented
|
I-2
through
book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in the
Depositary. Investors may elect to hold interests in the
capital securities represented by the registered global securities held by
the Depositary through Clearstream Banking, société anonyme,
Luxembourg (“Clearstream”), or
Euroclear Bank S.A./N.V. ( “Euroclear”) if they are
participants of such systems, or indirectly through organizations which
are participants in such systems. Clearstream and Euroclear
will hold interests on behalf of their participants through customers’
securities accounts in Clearstream’s and Euroclear’s names on the books of
their respective depositaries, which in turn will hold such interests in
customers’ securities accounts in the depositaries’ names on the books of
the Depositary. The capital securities may be transferred, in
whole and not in part, only to another nominee of the Depositary or to a
successor to the Depositary or its nominee. The Capital
Securities will not be issued in definitive form except in very limited
circumstances described in the Time of Sale Prospectus and Prospectus
Supplement.
|
||
Closing
Date and Time:
|
_____________________,
20__ __:__ a.m.
|
|
Closing
Location:
|
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Address
for Notices to Underwriters:
|
||
Address
for Notices to the Company or the Issuer Trust:
|
I-3
SCHEDULE
II
Underwriter
|
Number
of Firm Capital
Securities To Be Purchased |
[NAMES
OF
MANAGERS]
|
|
[NAMES
OF OTHER UNDERWRITERS]
|
|
Total
|
II-1